The FISA Court Is Tougher Than the Media Says

October 18, 2013

Now we know: the Foreign Intelligence Surveillance Court bounces a quarter of the government’s applications for surveillance orders. This according to statistics released this week by the court’s chief judge, Reggie Walton, in a letter to Senator Patrick Leahy, Chairman of the Senate Judiciary Committee. It also turns out the FISA Court is tougher on the government’s applications for orders designed to get foreignintelligence sitting on U.S. circuits than are the federal courts with respect to government applications for traditional wiretap warrants, which are mostly directed against U.S. citizens and permanent residents. But you wouldn’t know that from the media, because the media haven’t reported it.

Here’s the story.

You’ve probably read 20 or more times that the FISA Court approves more than 99 percent of the government’s applications for foreign surveillance orders. What few media have mentioned—and none has emphasized—is that the court often bounces applications and demands modifications before approval. It does so precisely because the application process is not adversarial and secret. As Judge Walton noted, the 99 percent figure does “not reflect the fact that many applications are altered prior to final submission or even withheld from final submission entirely, often after an indication that a judge would not approve them.” Those of us with inside knowledge have long known, and publicly said, that the FISA court scrutinizes the government’s applications with special care, but the data to prove it have been missing. Now we have them.

But the media have not reported an obvious comparison. How many federal and state applications for search-and-seizure warrants are modified before being granted? How many are denied? Knowing that would tell us a lot about how tough the FISA court is on the government.

In fact, the FISA Court looks tough when compared to the way federal district courts handle wiretap applications under Title III, as the federal law is known. Even if you stick with the misleading 99 percent figure, the approval rate for Title III wiretaps is higher. From 2008 to 2012, courts refused to grant only five wiretap applications among 13,593 applied for. That’s an approval rate of 99.96 percent. You can find that comparison in Judge Walton’s letter—it’s in footnote 6—and the information has always been available through the Administrative Office of the United States Courts for any journalist who isn’t afraid of numbers. But you won’t find it in the New York Times, the Wall Street Journal, the Washington Post, or any other news outlet. Bashing the FISA court is too much fun to let numbers get in the way.

NOTE TO JUDGE WALTON: Hiding the key comparison with Title III in footnote 6 on page 3 of your letter is known in the journalism business as “burying the lead.” In our profession, it’s called making the judge dig for information you should hit him in the head with. I doubt the journalists even read it. Senator Leahy certainly didn’t read it. Your Honor, put that stuff up front!